United States v. Stacy Winters

HEANEY, Circuit Judge,

dissenting.

I respectfully dissent. While I agree with the majority’s holding that the district court did not commit a Booker error, I disagree strongly with the majority’s af-firmance of Winters’s sentence. My reasons are twofold: First, the district court clearly erred in denying Winters a reduction in his offense level for acceptance of responsibility. Second, in imposing the maximum sentence for voluntary manslaughter, the district court failed to fashion a sentence reflective of the § 3553(a) factors. Instead, at sentencing, the court substituted its own subjective assessment of what sentence should be imposed for the statutory factors. For these two reasons, I would remand for resentencing.

I. The Guidelines Issue

In my view, the district court clearly erred in failing to. apply United States Sentencing Guidelines section 3El.l(a), which states that a defendant is entitled to a reduction in his offense level if he “clearly demonstrates acceptance of responsibility for his offense.”6 Our court has held that a defendant’s eligibility for this adjustment can be exhibited by outward manifestations of acceptance of responsibility. United States v. Wivell, 893 F.2d 156, 158 (8th Cir.1990).

Here, Winters met the relevant criteria to establish his acceptance of responsibili*862ty. This fact was recognized by both the government and the pretrial services officer, who recommended that Winters receive a three-level reduction for acceptance of responsibility and outlined their reasoning for this recommendation to the court. The district court ignored these recommendations and the fact that Winters had given a full account of his actions. Instead, it simply stated, “[t]he Court in examining this file concludes that in the Court’s discretion, the defendant would not be entitled to acceptance of responsibility. A plea of guilty is not sufficient to trigger the acceptance of responsibility under the guidelines.” Sent. Tr. at 3. As a result, Winters’s guidelines range increased from 41 to 51 months to 57 to 71 months.

I certainly agree with the district court that a simple plea of guilty does not entitle a defendant to a three-level reduction for acceptance of responsibility, but as this record makes clear, Winters did much more than that. He cooperated fully with the government’s investigation. He assisted in the prosecution of another offense. He notified the government of his intent to plead guilty in a timely fashion. Most importantly, Winters’s statement at sentencing demonstrates his sincere acknowledgment of and contrition for his criminal conduct:

I wanted to make this part of the record of the total regret and remorse I have for what has brought me to this courtroom today. If I could turn back the hands of time, I would take the knowledge and feelings and understanding I have today and believe I would have made better choices concerning this matter. Key words here are “would have, should have, and could have.” And this causes me to lie awake at night constantly contemplating on my actions; has caused me many sleepless nights. I am sorry for my past criminal history; I should say the lack of criminal history, that I did not react and respond like I did on a normal basis. And what has happened, believe it or not, is punishment in itself. I am here today to let the Court know I am accepting full responsibility for my actions. I would like to take this time to pray that the Court take mercy on me and show forgiveness that God has shown me. I hope the Court recognizes what happened is a horrible, horrible, horrible mistake and unfortunately leave these loved ones as well as for mine. My mistake is irreversible. I have no restitution or punishment can make up for life here. It is life, although there are people who can give me mercy, I want to let them know that I am very sincere about the re-morsefulness and in fact, my remorsefulness made me a spiritual person that will insure I will never commit a crime like this ever again. Showing forgiveness will give me a chance to prosper again, therefore give me a chance to make up all I can to the victim’s loved ones as well as be a productive citizen of the United States.
Sorry for what I did.... Hope you find it in your hearts to forgive me, man. I know you guys hate me, man, but ... I not only hurt you and your family, I hurt my family, too. Forgive me for what I have done.

Sent. Tr. 18-19.

Given Winters’s total cooperation and his “outward manifestations of acceptance of responsibility,” Wivell, 893 F.2d at 158, he was entitled to a reduction for acceptance of responsibility. The district court’s failure to adjust his guidelines range accordingly was clear error.

II. Review of the Sentence in Light of 18 U.S.C. § 3553(a)

I would also remand for a second reason: the district court imposed an unreasonable sentence in light of the § 3553(a) *863factors.7 United States v. Booker, S.Ct. 738, 767 (2005), mandated that a district court in sentencing must consider not only the guidelines, but the other § 3553(a) factors. Id. Our task is to review the district court’s sentence for reasonableness.

The sentencing transcript reveals that the district court did not mention the § 3553(a) factors during the sentencing hearing.8 The court rather gave the following two reasons for imposing the ten-year sentence for the manslaughter conviction, in addition to the mandatory consecutive ten years for using a gun in committing the offense: First, the court hypothesized that the defendant would be faced with the possibility of a lifetime sentence under South Dakota law, and in this case the defendant should not receive a lesser sentence simply because he was being prosecuted in federal court rather than state court. This is not a valid § 3553(a) concern; a state sentence is not available for this federal crime. Federal sentencing judges may not attempt to equalize federal sentences to their state criminal analogs. This approach would result in significant national disparity in sentences. Moreover, there is no evidence in this record, nor are there any publicly available studies or statistics, indicating that a first offender convicted of manslaughter with a firearm in South Dakota woulcl serve more than the thirteen to fifteen-year sentence the defendant would have faced with a guidelines sentence.9 Second, as is clear from the sentencing transcript, the district judge was upset that the prosecutor accepted a plea for manslaughter, rather than trying Winters for first- or second-degree murder. At sentencing, the prosecutor strongly disagreed with the district court’s assessment of its charging decision:

Though I have not practiced as long as Your Honor, we fully investigated this matter. We conducted dozens of interviews. As far as we are concerned, no one knows this case as well as we do. We are second guessed, as you often know, following charging decisions sometimes for years.

The prosecutor repeatedly reiterated the conviction was for the charge that the evidence supported. Sent. Tr. 12-14.

In short, there is nothing about Winters or the circumstances of this case to justify the district court’s dramatic variance from the guidelines. Until this offense, Winters persevered in spite of the obstacles Pine Ridge presents to its residents.10 He *864found himself at the age of twenty-two with no criminal record, a high school diploma, and a member of his tribe’s spiritual community. His crime was inexcusable, and resulted in the needless death of a fellow community member. But Winters himself recognized the gravity of his actions as his allocution ably demonstrated. It is not the duty nor the province of our sentencing courts to attempt an ad hoc equalization between perceived state and federal sentencing disparities, leaving an individual like Winters to suffer the burden of such an exercise. With an affir-mance of his sentence, Winters will serve a sentence double that of fellow inmates who have committed similar crimes. This sentence is unjustified and unreasonable.

CONCLUSION

If Winters were to be sentenced pursuant to this dissent, he would serve more than thirteen years in federal prison. That sentence is adequate to fulfill the § 3553(a) sentencing goals. This district court ignored Winters’s sincere acceptance of responsibility, and went on to impose a sentence far beyond what the guidelines called for, providing our court with no justification for its decision. In my view, this was an error. Accordingly, I would reverse and remand to the district court for resentencing consistent with this dissent.

. In determining whether a defendant qualifies for this provision, appropriate considerations include, but are not limited to, the following:

voluntary withdrawal from criminal conduct, or association with those involved in such conduct; voluntary restitution payment made prior to a guilty plea; admissions to authorities regarding the offense and related 'conduct; prompt surrender to authorities after committing the offense; assisting authorities -in the recovery of relevant fruits and instrumentalities; and the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility-

USSG. § 3E1.1, comment, (n.l).

. The factors include: the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed; the kinds of sentences available; the kinds of sentence and the sentencing range established for the offense; any pertinent policy statement relevant to the offense. 18 U.S.C. § 3553(a) (citations omitted); see also United States v. Killgo, 397 F.3d 628, 630 (8th Cir.2005) (noting that following Booker, we review the imposition of sentences for unreasonableness, "judging it with regard to the factors in 18 U.S.C. § 3553(a)”); United States v. Yahnke, 395 F.3d 823, 824 (8th Cir.2005)(same).

. In the district court’s written' Statement of Reasons, it stated that it "also considered the factors set forth in 18 U.S.C. § 3553(a) in imposing the sentence in this case,” but provided no further elucidation of those factors.

. -Winters faced a ten-year consecutive sentence for this firearms conviction in addition to his voluntary manslaughter sentence.

. Though the deplorable conditions of Pine Ridge Indian Reservation cannot serve as an excuse for Winters’s actions, it is important to note that the Pine Ridge Indian Reservation is often considered one of the poorest places in America. Infants are twice as likely to die from sickness or injury than other infants living across the United States. The life expectancy for men at Pine Ridge is only 56.5 years, a figure that rivals that of Central African nations, and is the lowest in the northern hemisphere, with the exception of Haiti. More than one-third of the homes on Pine Ridge have no indoor plumbing or electricity, and they often hold several families living among two to three rooms. Edward B. Geh-*864res III, Note, Visions of the Ghost Dance: Native American Empowerment and the Neo-Colonial Impulse, 17 J.L. & POL. 135, 140-41(2001); Pine Ridge Indian Reservation, South Dakota: Community Mini-Plan, South Dakota State University, Rural Community Planning, Sociology 640 (December 16, 2003, available at http://sdrurallife.sdstate.e du/Ru-ralPlanning''& Developmenl/PineRidge.pdf).